19870213 TZHC Dar es Salaam

fZtK· (PC) CIVIL bFP~1.L NO. 47 OF 1986 (From the decision of tLe District Court of KILOS~ at KILOSA in Civil .i,i:1peal Ho. 34 of 1985) • • • • • • • • • e • e • e O ~ 6 S • • e • e e • • e e ~ • versu.s AI-m4J.1DI KI.i:3IKI .........................• .. dh::s f-OIJDENT JUDGJEM.SNT lVIZ.iiVilS J .K. - The appellunt in this case allowed the respondent to occupy and cultivate a piece of land; three acres. This was in 1982. Sometime in 1985 the c::ppellc:nt/plaintiff .. claimed repossession of the piece of land she had allowed the respondent/defendant to cultivate. The respondent/defendant refused to surrender the piece of land; argu.ing that the &p_pellant h&d permanently given him the disputed land. The appellLnt/pl~intiff proceeded and filed a suit in Kilos& Urbc:.n Primary Court cl&iming possession of the said piece of loEd fro1i1 t11e respono.eet/def endant •. iifter hec:irint;; evidence from both parties the prirnc:ry court magistrate Elnd the assessors w.bo sut with him were W1animous .. that the appell&nt hc.,cl merely lensed the piece of lc:.11d to the respondent b.nd ::'e~octed re.spondent'edefence that the land was permanently given to him by the appell&nt. Judgement was acordingly entered in appellant's favolu~ and the respondent/ defendant w2.s ordered. to h0.nd over the piece of lc:.nd to appellbnt. Dissatisfied with tLc decision of the prim&ry court

the respondent/def8nd.8nt appeulecl to Kilosa district cou.rt. Giving· judgement in favour of the rospondent the learned senior district ...;"• magistrate Sbid inter&lic.1 o •• ''Su.rely the pr8ctice of holding .... /2 2 .,.. big l 0 nd not for cu.ltivc1tion by tlle hol_der bu:t for su.bletting it does not conform with the 1Jolicy of this cou.ntry. lifter all l&nd is a gift from God, it does not belong to_ any person in the mc;;nner claimed by the respornlent"~ The district court then concluded by sayint: tlibt tlie respondent hc:d the right to own the dispu.ted piece of lund ''on E!ccount of the permanent crops he had grown on it". The appellant/plaintiff was u.nhbpp_y with the decision of the district cou.rt c1nd has now appealed to this court. Before this Court the appellant/plaintiff insisted that she hc;,d merely allowed the respondent/defendant to -cultivate the land and that she .hc::d not permt:tnently surrendered ownership of the lc.nd to him. The respondent on tho other had maintained his defence in tho lower courts t.hc:;1t the appellant had perri1~ne11tly given the l&.ud to him and that he has since developed the le1nd ct.nd plt.nted permancut crops. There was undisputed evidence in the court of first ins'tance that c.1ppellant's futher was a lc.ndlord who owned a big track of land in the c:1ret1. .t.fter the death of · her father her brother ~1berited the land,

Soon 8fter her brother also died and she becur:ie the ownC:lr of the land. The dispute between the parties ovor the lL.nd was first reported by tho appellant to the local C,C.M office. The respondent was ', summoned to appe~r before the C,C,M office but refused and consequ.ently 0,0,M office ~dvised the appoll~nt to go to cou.rt, The qu.eetion whetl:i.er tho c.ppellc.nt ht,d permE::tno.ntly given the piece of land to the resi:onoor~t ~s blleged by the respondent or whether she h~d merely 8llov~ed hira to cultivate ttie lc;;.nd as argued b.Y tho appellc:.nt w~s a quostion- of fE;ict. The primary court found it as E:J. f!;(ct th1;:it the <-<IJ.Pellc;\nt/plc..tintiff had merely teinporuril,Y surrendered possession of the lc::..nd to the respondent who We!S to cul tiv~te it up to such time that the appell~nt needed it. ·.... /3 - ' 3 There was eviclence in support of this finding of fact as demonstrated in the testimony of Abdullah C.honoke (P.vv~2)~ This was a question of credibility; and as it wbs held by this Court in L.fd.iiHM .i·.lfabD V:-5 H.1:,~L1.1, GLJL.~TI (1968) H.U.D •. 76, such question is "best judged by thG court befor9 whom that evidenc·e is given and not by c1 tribunal which merGly re&ds a transcript of the evidence".· Ont.he evidence the respondent/defendant wus a mere licensee. He was, &s we call him in ·Land Law, a ten&nt at will who had no sure estate. In such

circumstances the owner of the land, in this case the appellc...nt, oould put him out of the land at any time s.rfo needed the land. From the evidence in the primury court it wets clear t.hut the appell,mt had leased the lc.nd to the respondent on condition that he planted no permanent crops. If he plb.nted bananc.t trees he was clec.rly in brec.(ch of the clgreeme:::nt and &s such he should not be .hec.trd say int; that he cannot leave the land &she had plsnted perm1.111Gnt crops. i~ s I h&ve alrecJ.dy sEi iu above tho decision of the pr im&ry court was b~sed on the credibilty of the witnesses. The trial court was in a better posi tio.n to assess the credibility of the witnesses tb.t. .. 1 the district court or this court which merely read the transcript of tho record. Tho district court clearly erred in reversing the decision of the primc.;ry court.· In the event the appecil is a upheld. Tho judgement of the district court is accordingly sGt Lside and thut of the primary court is restored. Tho £.tppellc1nt to have her costs in t.his and the lower courts•' ', /I'._ . ,.. -~,,'}~ ·. ~x~_ . . ._ . . . N.Ll~ Ivfr)zovas Jl,JI KIONGOZI Dar es Salaam 13/2/87 Judgement to be reed to the parties by the District MagistrLlte Kilosb before the parties &nd the date recorded, N. S. I:.lz8.V8.s JAJI KIOI'.'GCZI, '·